PRAHLADGIRI KARSANGIRI GOSWAMI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Criminal Appeal No.643 of 1997 is filed by Prahladgiri Karsangiri Goswami, original accused no.1 in Special Case No.281 of 1996, while Criminal Appeal No.712 of 1997 is filed by Lalubhai Chhaganbhai Mir, original accused no.2 of the same case.

(2.) Both these appeals filed under section 374(2) of the Code of Criminal Procedure, 1973 are directed against the judgement and order dated 31.5.1997 rendered by the learned Additional Sessions Judge, Banaskantha at Palanpur, by which appellant of Criminal Appeal No.643 of 1999 was convicted in Special Case No.281 of 1996 under sections 17 and 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and was punished with rigorous imprisonment for 10 years and fine of Rs.1 lakh, in default to further undergo simple imprisonment for two and half years. Whereas the appellant of Criminal Appeal No.712 of 1997 was convicted under sections 17 and 18 read with section 29 of the NDPS Act with rigorous imprisonment for 10 years and a fine of Rs.1 lakh, in default to further undergo simple imprisonment for two and half years.

(3.) On 7.9.1996, Mr.P.M.Jadav, who was then discharging duties as Police Inspector in the State Narcotics Cell, C.I.D. Crime, Gujarat State, Ahmedabad had received information from one Police Constable, Shri Paragbhai Vajabhai Parmar that original accused nos.1 and 2 were in possession of opium illegally and were selling the same. On receiving the said information, necessary entry was made in the register and after conveying the information to the Superintendent of Police, Narcotic Cell, a raid was arranged in presence of Panchas. The raiding party proceeded to the place. They reached Sihori Rest House, where two persons were called to be the Panch witnesses. They were intimated about the raid. The Panch witnesses, the Police personnel, the Government as well as private vehicles were searched and nothing objectionable was found. Raiding party along with the Panch witnesses and the staff members of the Police started from the rest house, after making a preliminary Panchnama, which is produced at exhibit 20, duly signed by both the Panchas. The raiding party reached 'Dev Darbar Na Patiya' on the road leading from Thara to Deodar. They inquired at the road side hut where a man was preparing tea. He informed his name to be Savabhai Punabhai Mir, resident of Vibha Nesda Village. He was then inquired about Prahladgiri Karsangiri, resident of village Varsada and Lalubhai Chhaganbhai Mir, resident of village Chemla. He pointed out two persons sitting on a cot at the distance of about 10 ft. The raiding party immediately surrounded them and asked them to be seated as it is and inquired their names. One of them stated his Prahladgiri Karsangiri Goswami of village Varsada, who was having a white plastic heavy bag in his lap. Second person, on inquiry, named himself as Lalubhai Chhaganbhai Mir, resident of Chemla. Both these persons were informed that the raiding party has information that both these persons are keeping illegal opium and are trading in the same and that they are to be searched. P.I. Mr.Jadav introduced himself along with accompanying P.I. Shri Pathan being Gazetted Officers and the other members of the raiding party as Police personnel informed orally as well as in writing that still if they want to be searched in presence of any other gazetted officer or a Magistrate, the same can be arranged. The accused denied to call any other gazetted officer or the Magistrate. Thereafter, a plastic bag, which was in the lap of Prahladgiri Karsangiri, accused no.1, pieces of plastic were found and below that round and semi circular shaped black-brownish substance was found. On smelling the same in presence of Panchas, it was found to be smelling like opium. On counting, in all, 96 pieces were found. Some of the pieces were marked with English letter, 'R'. On weighing the said substance with the weighing scale by Police Constable Paragbhai Vajabhai, it was found 4 KG and 700 Grams. Five pieces bearing mark 'R' were taken as sample and on weighing them it was 210 grams. Said pieces were placed in a tin box after closing it, the same was wrapped in a paper. Remaining 91 pieces remained in the same plastic bag. The plastic bag was stitched and it was also wrapped in a paper. Said plastic bag was placed in a tin box which was then tied with a string after placing a slip bearing signatures of the Panchas and that of P.I. Shri Jadav. A chit was tied and the tin box was applied with a wax seal bearing mark, 'P.I., NDPS, GS, C.I.D. Crime, Ahmedabad'. Opium weighing 4 KG, 700 grams, valued at Rs.1,87,000/-, was seized. A sum of Rs.170.00, was recovered from accused no.1 and a sum of Rs.150.00, was recovered from accused no.2. Both the accused were given seizure memo about the opium and cash recovered. On inquiry none of the accused had any pass or permit for possessing the said opium. Therefore, they were arrested and were intimated about the same. A detailed Panchnama was drawn. A forwarding note was also prepared for sending the sample Muddamal to the Forensic Science Laboratory (FSL).Thereafter, along with both the accused and the Muddamal, the raiding party started for Ahmedabad and on reaching Ahmedabad the papers, Muddamal and the accused were handed over to PSI Mr.M.N. Patel for registering an offence and for carrying out further investigation. Mr.M.N. Patel registered an F.I.R. and undertook investigation.Muddamal sample in sealed condition with a forwarding letter (note) was sent to FSL, Ahmedabad. A receipt issued by FSL was kept in record. The investigation was then handed over to P.I. Shri N.N. Pathan. On receipt of a report from FSL and on completion of the investigation, the appellants were charge sheet for offence punishable under sections 17 & 18 of the NDPS Act in the City Sessions Court, Ahmedabad.